In an order issued today, the Michigan Supreme Court affirmed that decision, except for one part of the opinion that it deemed unnecessary. The vacated portion of the COA opinion dealt with whether the parcel was “an identifiable unit of land.”

Justice Brian Zahra dissented, joined by Justices Stephen Markman and Mary Beth Kelly. Zahra argued that the landowner should get compensation for the loss in value caused by adjacent land being made more attractive to developers.

“In my view, while the order properly leaves in place the Court of Appeals majority’s determination that defendant has a property interest in the property that was taken, it improperly lets stand the clearly erroneous determination that this property interest was limited because the master deed or bylaws specify that any development was ‘subject to plaintiff’s approval,’” Zahra wrote. “That plaintiff’s approval was required merely acknowledges that plaintiff has the right to regulate all development. Though plaintiff could veto a project approved by the developer, it did not have the right under the master deed or bylaws to compel an extension of the public utilities as done here without paying defendant just compensation. In other words, there is little dispute that defendant possessed property rights under the master deed and bylaws that were affected by plaintiff’s taking.”

But “most troubling,” Zahra said, is that the majority attributes the loss of the value to being “’outpositioned’ in the market place.” He said that no caselaw forbids an interpretation of Michigan’s condemnation laws that would allow for the property owners to be compensated, thus, the trial court, didn’t abuse its discretion when ordered the township to pay $1.5 million in compensation.

“After taking these property rights, plaintiff in essence gave these rights to a private entity, no doubt with the expectation of generating additional tax revenue for the very taking it had facilitated,” Zahra wrote. “All this was done while being indemnified and held harmless by the private entity that benefitted from plaintiff’s actions. The trial court did not err by concluding that Lyon Centers was the relevant parcel and that defendant had property rights that were affected by plaintiff’s taking.”

This post has been edited from its original form. The original order issued December 18, 2012, listed Justice Zahra as the lone dissenter. An amended order was released on December 19, 2012, identifying Justices Markman and Mary Beth Kelly as joining in Zahra’s dissent.